Malaysia was envisaged to be the pioneer of moderate Islam; a country that has peacefully established a dialogue between religion and state in order to accommodate International standards of civil and political ethics. However, the demarcated lines between administrative policy and Islamic diktats have been blurring in the region in all state controlled spheres. In the contemporary global debate on engendering a cohesive human rights framework, the upsurge of state mandated violence and harassment of people belonging to the Transgender community and the shifted focus of propagators of justice towards identity recognition.

The concept of Identity Justice is comparatively modern in the study of justice. Finding its molecules in the inherent criticism of Rawl’s Liberal definition of justice, the massing of these molecules in a structured form of a theory is largely dedicated to the Communitarians. These Communitarians have unveiled to the vision of the jurists the stark social inequalities that are founded upon the identity of the individual or a group in a cosmopolitan society. Therefore, it is the inefficiency of the man adorning a ‘veil of ignorance’ to identify an ethnically prejudiced group and its demands in order to provide an unimpaired structure of a neutral theory of justice that has triggered further research in the field of Identity Justice.

Anti-Crossdressing Legislation

In 1992, Syariah Criminal (Negeri Sembilan) Act was enacted, codifying certain prohibitions under the Shariat law. Section 66 of this enactment criminalizes cross-dressing. It says that any male person, who in public places poses like a woman or dresses like one shall be liable to be punished with 1000 ringgit or a term of imprisonment for not more than 6 months, or both. The possibility of a Gender Identity Disorder is not taken into consideration while indicting someone under this section.

This draconian provision has provided a lot of space to religious fanatics for maneuvering the public morality according to their standards. The divine validation, as propagated by the tenants of Sharia, is something that is considered to be beyond speculation or scrutiny by any human agency. As this provision has received a vehement state backing, the cases of harassment by public and police officials have surfaced quite frequently. The police who later sexually or verbally abuse them within the premises of a prison pick up people from the streets under the loosely structured verbatim of this provision.

Most of the people arrested under this provision are made to dwell in the same cells where other male offenders are also lingering. This exposes people who identify themselves as transgender to continuous mocking and occasional sexual abuse.

This provision has also become a political tool for the government to curb any possible resilience from the opposition. The recent victim of this political vendetta is the opposition leader Anwar Ibrahim who was charged under this section as well as under sodomy.

Rule of Law

The fate of Section 66 of this Shariat Code is extremely derogatory to the principles of rule of law both in words and practice. The doctrine that hails every individual to get equal protection of law, denies such protection to a community on the grounds of “clothing”. This classification, in no rationale sense, can be accepted as reasonable in order to promote larger public good.

This Section also contravenes multiple provisions of the Federal Constitution such as Article 5(1), 8(1) and 9(2) that assure protection of civil liberties. The most evident contravention of the Constitution is seen in the context of Article 10 that guarantees every individual the freedom of expression.

By disallowing constitutional discourses to take place and letting the Shariat Brigade to persevere, the state is doing a major disservice to the cause of Identity Justice.

Human Rights Violation and Identity Justice

Such is the dismal situation of the Transgender community in Malaysia that Human Rights Watch dedicated an entire report specifically dealing with this issue in 2014. A document titled “I’m Scared to be a Woman” is a comprehensive analysis of the systematic violence that is inflicted upon the transgender community by the government and its machineries.

Prohibition to cross-dress emanates from the Shariat code that is implemented by the Islamic Religious Departments in every State. Apart from the Shariat code, transgender people are also arrested by the police under a vague provision of a secular penal code that deals with “public indecency”. Some accounts also point towards possible physical and sexual abuse of arrested individuals by the officials of the Religious Department. Transgender women are also subjected to acute humiliation as they are paraded in front of the media.

The government is also believed to be complacent about this outright discrimination. Instead of punishing the exploiters of transgender women, the government furthers the fundamentalist approach by ultra racial and derogatory speeches against the people belonging to the transgender community. Buoyed by such state support, The National Fatwa Council issued a fatwa in 1982 prohibiting Muslims to undergo Sex Reassignment Surgery (SRS). Even though such law would only deal with Muslims, the majority status of the Islamic community has instilled fear in the Non-Muslim population as well. In addition to this, even if a person gets an SRS done from abroad, the Malaysian government would not recognize his “changed” gender. He would be forced to use the gender identity of his birth for all official purposes. In certain extreme cases of torture, some transgender women are sent to prison “to correct themselves” and the authorities shave their heads.

Under such socio-political malaise, can following the procedure established by law be considered as justice? The answer to this should be a negative. There’s a need to establish the principles of Identity Justice in the Malaysian legal system if justice has to be sought in the truest sense. The basis of Identity Justice rests upon the idea of recognition. Andrew Linklater in his book “The Transformation of Political Community” has explained the significance of initiating a dialogue with diversity in order to create a sense of understanding. This understanding would save the diverse communities from falling into the dangerous category of “others”. In the Malaysian context, having communicative inclusion of the much discriminated transgender community could bring justice. There’s a need of an ethical conversation between the community and the state to ponder upon a poststructural idea of Justice as envisaged by David Campbell. Through this conversation, the state would generate a certain sense of “belonging” towards the members of the transgender community and trace many common grounds through which a peaceful balance can be struck between Shariat set up and civil liberties of the citizens.

To process such dialogue it is very important to differentiate between gender and sexual orientation. This is significant to protect the transgender community from the Shariat reprimand of homosexual relationships. Transgender people may identify themselves as homosexual, heterosexual or asexual, but the entire community cannot be blanketed under a single sexual orientation. Such differentiation is not an example of homophobia but is an effort to recognize the individuality of every member within the transgender community. Creating such a distinction is also imperative to debate for the overall identity recognition of the transgender community. While rendering justice on the grounds of recognition of identity, no transgender person shall be prejudiced on the basis of an identity he/she doesn’t identify with but is simply subjected to by the ill-informed convenience of public stereotypes.

Legal Theatrics

The Malaysian legal system has special religious courts that deal with civil and religious matters. The religious courts rely upon Shariat doctrines while announcing sentences to the accused parties. In the matters relating to anti-crossdressing law, these religious courts have been anything but just, reasonable and in possession of good conscience.

Affected by this gross miscarriage of justice and violation of civil liberties, Section 66 of the Shariat Penal Code was challenged in the Court of Appeal questioning the constitutional validity of the provision. The three judge bench unanimously held Section 66 to be unconstitutional as it violated the fundamental right of an individual to live with dignity. The court also opined that such provisions go against the Freedom of Expression and must be struck down to prevent any further damage. In the judgment that can be regarded as the magna carta of Transgender community, Judge Mohamad Yunus quoted that this law was degrading, inhumane and suppressive. The court also took into consideration the crucial distinction between gender and sexual orientation and said that transgenders cannot be made victims of Islamic prohibition of homosexuality.

This validating rejoice of the entire transgender community was much awaited. However, the fate of such rejoice was short lived. In October 2015, the Federal Court of Malaysia revered the judgment of the Court of Appeal and dismissed the petition that challenged the ban on anti-crossdressing law. The court dismissed the petition on the flimsy ground of “procedure non compliance” citing that the petitioners did not follow correct channels before approaching the aforementioned court. This judgment has created huge resentment among the pro-transgender activists as well as many members of the legal fraternity. The result of this judgment might lead to furtherance of illegal arrests and prosecutions of transgender people with an inflated vigour of the religious authorities.

Conclusion: Malaysia and the World

Malaysia is a signatory to many International Human Rights Conventions, including the UDHR that recognize the equal rights for transgender community. Human Rights Watch has suggested UN to dismiss Malaysia’s membership for non-compliance with shared human rights guidelines. To this the Malaysian government has responded by saying that it believes in the overall structure of the human rights obligations;nowhere is it made obligatory for the states to give equal status to the transgender community.

We are moving towards a space where human rights and civil liberties are blurring boundaries of domestic politics and are shaping into issues of global concern. With rights and morals coming into conflict with each other in a contemporary diverse milieu of Malaysia, it is highly advisable for the nation to encompass national aspirations by processing a dialogue under Identity Justice. There’s always a common thread that runs through every human being irrespective of its cultural identity and this is the thread that needs to be found and strengthened for a more secure space for transgender community and better flourishing of the principles of Identity Justice.

Libertatem Magazine serves as a legal awareness resource for all, ranging from Students to Academicians to Practicing Advocates. Libertatem Magazine helps in the formulation of opinions and prepares individuals for a journey through our in-depth scrutinized content on almost all the topics including political, legal, social and a plethora of other matters of national & international significance.